For the second time in a week, the U.S. Supreme Court issued an opinion that delivered a small, indirect, and perhaps unfinished victory to policies that have benefited the LGBT community. In doing so, it also gave the community an important symbolic nod: that religious beliefs may not always trump non-discrimination policies. And, it did so with a hostile 5 to 4 split among the justices.
The nod came in a June 28 opinion penned by Justice Ruth Bader Ginsburg for a majority that included Justice Anthony Kennedy, the obvious swing vote between two increasingly polar segments of the court.
The case this week was Christian Legal Society v. Martinez, from the 9th Circuit U.S. Court of Appeals. Just last week, the high court upheld another 9th Circuit decision—in Doe v. Reed—which said a Washington State law requiring public availability of records indicating the names and addresses of people who sign petitions putting issues on the ballot.
Last week, it upheld the 9th Circuit's decision upholding a public school's non-discrimination policy.
A Christian student group, Christian Legal Society ( CLS ) , had been denied official student group status at the University of California-San Francisco's Hastings College of Law.
CLS had argued that the public university violated its First Amendment rights when it refused it official recognition and the benefits and resources that go along with that status. The school argued that it treated CLS like every other group when it required CLS to comply with the school's policy against discrimination based on sexual orientation, religion, and other factors.
The majority agreed with the lower courts that UCSF's non-discrimination policy is "a reasonable, viewpoint-neutral condition on access" to student group privileges and resources.
In her opinion, Ginsburg said CLS was trying to circumvent the non-discrimination policy and that, she said, was seeking "not parity with other organizations, but a preferential exemption" from a legitimate policy.
"The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be," wrote Ginsburg. "But CLS enjoys no constitutional right to state subvention of its selectivity."
"We are thrilled that the Court rejected the dangerous argument that anti-gay groups have a First Amendment right to discriminate, even when they are accepting public funds," said Shannon Minter, legal director for the National Center for Lesbian Rights, which represented the gay student group at Hastings. The gay student group was an intervenor party to the litigation.
"This decision," said Minter, "should go a long way toward putting a stop to efforts by anti-gay groups to challenge basic non-discrimination policies and laws."
Minter said CLS has been bringing similar cases across the country in a "blatant effort to undermine anti-discrimination protections for LGBT people."
But Justice Sam Alito, writing for the dissent, saw a march being led by a different drummer's beat. He chided the majority as going so far as to use a "misleading portrayal" of the facts of the case in order to make a play for "political correctness." His dissent seethes against a majority he perceives to be leading a liberal march.
"Brushing aside inconvenient precedent," wrote Alito, parodying former Vice President Al Gore's An Inconvenient Truth documentary against global warming. "The Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups…."
In his case, Alito is referring to Christian groups as unpopular.
Alito was joined by the court's reliably conservative justices, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.
The case was considered particularly significant to the LGBT community because it tested the ability of some people to ignore laws prohibiting discrimination based on sexual orientation. Christian Legal would allow gay students and people who would not endorse the group's stated religious viewpoint to be members of the group. But it would not allow such people to vote or hold office.
That, said the university, was discrimination based on sexual orientation and religion.
The First Amendment right to religious beliefs has frequently trumped laws and policies banning discrimination based on sexual orientation at the U.S. Supreme Court level. It did so most notoriously in 1995 in a case called Rosenberger v. University of Virginia—where the Supreme Court said a public university had to provide funding for a campus Christian group's newsletter even though the newsletter espoused beliefs that contradicted the university's non-discrimination policy.
During oral arguments in April, many of the justices complained about the uncertainty of important facts in the case. For instance, the facts of the case did not indicate clearly whether the school refused official status to the Christian Legal chapter because the group violated the school's written non-discrimination policy or because the group violated the school's stated interpretation of that policy—dubbed the "all-comers" policy—that all official student groups must allow full and equal participation by all students.
Christian Legal said it was willing to abide by the written policy, by allowing gays to attend its meetings; but it said the all-comers went too far and amounted to interference with the group members' First Amendment rights to free association and free exercise of religion.
The majority stuck to the all-comers policy, noting that CLS and the university had both agreed in the district court that this was the policy used to deny CLS its status as a recognized student group. But it remanded one of CLS's claims back to the 9th Circuit—whether the University had applied its all-comers policy exclusively against CLS, and not other groups.
The National Center for Lesbian Rights provided representation to the UC-Hastings gay group Outlaw, which was designated as a party to the lawsuit, as an intervenor, to help defend the policy.
Lambda Legal Defense and Education Fund, along with Gay & Lesbian Advocates & Defenders ( GLAD ) , submitted a brief to the court in favor of the school, saying that public funds and student fees should not be used to support discrimination against any student.
© 2010 by Keen News Service. All rights reserved.
